SCOTUS 101: Legal Thrillers


SCOTUS 101: Legal Thrillers

May 26, 2023 30 min read

Commentary By

GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

Zack Smith @tzsmith

Senior Legal Fellow, Meese Center for Legal Studies

Rudy Sulgan/Getty Images

The Court handed down big decisions this week, all unanimous, including Sackett v. EPA and Tyler v. Hennepin County. After your hosts discuss those cases, GianCarlo interviews lawyer and novelist Chad Boudreaux. The two talk about his fascinating career and his latest legal thriller novel, Scavenger Hunt, which draws on Chad's unique knowledge of the inner workings of the Department of Justice. Last up, Zack quizzes GianCarlo with trivia about famous end-of-term opinions.

GianCarlo Canaparo: Welcome to SCOTUS 101, where we break down what’s happening at the Supreme Court, what the justices are up to.

Zack Smith: And other things related to our favorite branch of government. Welcome back to SCOTUS 101. It’s another week and another batch of opinions.

Canaparo: Not as many as last week, but we did get a few big ones. I’ll start us off with the first one, Sackett versus the EPA. This was a unanimous judgment, though not unanimous reasoning. The opinion was written by Justice Alito, joined by the chief Thomas Gorsuch and Barrett, holding that the Environmental Protection Agency abused its power in blocking the Sacketts from building their home on a piece of land near Priest Lake Idaho.

As you probably recall from our episode when this case was argued, the Sacketts bought a piece of property not far from Priest Lake and wanted to build a house on it. They got all the permits, but the federal government swooped in the last minute and said that they can’t build on the land because it contains navigable waters of the United States subject to federal regulation. Now this was odd, because the Sacketts lot did not contain anything which was anything like navigable waters. But the government said that it had the power to regulate their land, because their land had a significant nexus to navigable waters. Now that phrase, that test, is from a solo concurrence by Justice Anthony Kennedy from a case called Rapanos. Specifically, the government said that there is a significant nexus between the Sacketts land and a navigable waterway, because their property borders a road, and across the road is a ditch, and that ditch feeds into a creek, and the creek flows through a wetland which borders the lake and the lake is a navigable water.

Smith: GC that seems like some type of syllogism you’d see in a class somewhere.

Canaparo: So anyway, the Sacketts have been fighting and losing this battle in the lower courts for 16 years. But today, they won in the Supreme Court. Justice Alito writing for the majority, held that navigable waters are only those relatively permanent standing or continuously flowing bodies of water forming geographical features. In ordinary language streams, ocean, rivers, lakes, and some wetlands. Land can be regulated if it is adjacent to such bodies of water, which means that they have a continuous surface connection.

Justice Thomas joined by Justice Gorsuch, joined the opinion in full, but wrote a concurring opinion to say that the court should also have decided what the word navigable means. Looking to historical definitions, he found that navigable means those waters that can be used as highways of commerce. Justice Kagan joined by Justices Sotomayor and Jackson concurred in the judgment, but wrote to say that they would take a broader view of what the word adjacent means. To them, it is just anything nearby and not things which are next to. But still, she agreed that the government went too far here. Finally, justice Kavanaugh concurred to further explore the difference between the words adjacent and adjoining.

Smith: Very interesting. Sackett was a PLF case and it was a big day for Pacific legal Foundation, because the next one, Tyler versus Hennepin County, is a PLF case as well. In this case, it was unanimous opinion by Roberts, where the court held that when a government seizes and sells a taxpayer’s property for unpaid taxes and keeps for itself any excess amount beyond the taxes owed, plus interest, penalties, fees and that sort of thing, a taking has occurred in violation of the Fifth Amendment’s takings clause. In this case, 94 year old Geraldine Tyler had bought a one bedroom condominium in Minneapolis where she lived until she was forced to move to a senior living community in 2010. Unfortunately, no one paid the property taxes on her condo in Tyler’s absence, so Hennepin County seized it and sold it for $40,000. Tyler owed the county approximately $15,000, but the county kept the excess $25,000 too.

So, Tyler brought a punitive class action against the county alleging violations of the Fifth Amendments takings clause and the Eighth Amendment’s excessive fines clause. The District Court dismissed her suit for failure to state a claim in the eighth circuit affirmed. The Supreme Court reversed that finding though, and said that Tyler has plausibly alleged a taking under the Fifth Amendment. And they also said because relief under the takings clause would fully remedy or harm, the court did not reach the Eighth Amendment excessive fines issue. Justice Gorsuch though joined by Justice Jackson wrote separately to express his view on the excessive fines issue. And he said that, “Even a cursory review of the District Court’s excessive fines analysis reveals that it too contains mistakes future lower courts should not be quick to emulate.”

Canaparo: Speaking of mistakes, the Chief Justice made an error in his majority opinion. He refers to the Magna Carta, but you don’t use the with Magna Carta because it’s Latin and Latin names don’t take articles.

Smith: Very interesting. The other interesting thing GC, I think this is the second time we’ve seen Justice Jackson join Justice Gorsuch in a separate opinion. And so, I’ve seen some scuttlebutt on Twitter and other social media about whether this could indicate some type of potential future ideological alignment in some way.

Canaparo: We shall see.

Smith: Indeed.

Canaparo: All right. And last stop, Dupree versus Younger, another unanimous decision, this time by Justice Barrett. The court held that you do not need to file a post-trial motion for judgment as a matter of law to preserve for appellate review, a purely legal issue resolved at summary judgment. So as always, procedural can be technical and complicated. So, let me break it down. On the eve of trial, parties can file motions for summary judgment, which argue that the court should grant judgment to one of the parties, either because there are not facts in dispute and the undisputed facts show that one party deserves judgment, or because there’s a question of pure law that decides the case.
If the court denies summary judgment, you go to trial. After trial, you can file a renewed motion for judgment as a matter of law. Now, until today, in some circuits, you couldn’t appeal a particular issue unless you also filed that second motion. In other words, merely a loss at summary judgment didn’t preserve that issue for appellate review. But today, the Supreme Court said that if the issue is purely a question of law, you don’t need to file the renewed motion for judgment after trial in order to appeal it. And, that’s it for opinions today. Right after this, our interview with Chad Boudreaux.

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Canaparo: We are joined today by Chad Boudreaux, Executive Vice President and Chief Legal Officer at Huntington Ingalls Industries, which is the nation’s largest military ship building company. In addition to a fascinating legal career, I am excited to chat with Chad today about his legal thriller novel, Scavenger Hunt. Chad, welcome to the show.

Boudreaux: Thanks so much for having me.

Canaparo: So Chad, what first sparked your interest in the world of law?

Boudreaux: Well, my mom wanted me to be a doctor. And, I just really wasn’t good at science or math. And so I think, just practically speaking, I wanted to do something that was big, at least for my family. I was the first to graduate college. And so, that just led me towards the law. I think I was good at debating at an early age. So, that’s the non-sexy answer. I tell people now though that ask me why should they get in the law if they have questions about it, that it really is an industry and a profession where at an early age people can do big things and be involved in some, I think, pretty momentous decision making. And, that certainly was my experience.

Canaparo: So, right after law school, you started as an associate at Germer Gertz. What things did you do there?

Boudreaux: Yeah. So, Germer is a very, I think, aggressive litigation firm in Texas. I had really started at the biggest law firm at the time in Austin. And the people that I had interviewed with, while I was taking the bar exam left to go and start their own firm. So, when I got the care package that a lot of us get when we’re studying for the bar exam, and I wanted to thank somebody for that, and I remember calling the firm and saying, “Hey, I want to talk to this particular individual.” And, he no longer worked there. And, my world had been turned upside down for a bit. And then, they made me an offer to be the only associate there at least for a limited time. And, I took it, and it was one of the, I guess, many risks that I took in my career and it certainly paid off.

Canaparo: So, you practiced there for a few years and then made a pretty big change in September of 2001. You joined the DOJ Civil Division doing national security work. What prompted that change?

Boudreaux: At some point, after three years of litigating cases in Austin, I had dreams of going to DC and working for the department in some capacity. And I had done some interviews with several people I think, a few of which you’ve had on this podcast. And, during that period was in a waiting period for I guess a few months. And, I got the call from John Ashcroft Group on September 10th in Austin really late at night. And was preparing my remarks to leave my firm the next morning when I learned of the terrorist attacks. So, that’s the way that came about.

Canaparo: Did the September 11th attacks change the nature of the position you were taking or your plan with respect to your career at DOJ?

Boudreaux: Absolutely. So I was being hired to be in the torts branch of the civil division. I was going to be a line lawyer there. And, was looking forward to it. When I finally got to DC several weeks after the attacks, we were in a different period. And, DOJ was right in the center of not only responding to the attacks but preparing for what we thought might be future attacks, and then also looking back and trying to figure out not only from a legal standpoint, but also from a victim’s compensation standpoint, what we needed to do. So I was thrust right into the middle of that. And, the portfolio that I had anticipated having, let’s say, in the summer of 2011 had changed by the time I got to Main Justice.

Canaparo: What things did you work on during that time?

Boudreaux: There was a lot of civil litigation that was being brought by victims families, or certain families against countries of interest there. But primarily, it was the Victim’s Compensation Fund is the one I talk about. We, at the time, had never had a taxpayer funded compensation program like the one that was created right after 9/11. It was a creature of the Congress and handed to DOJ to compensate victims that had survived and family members of victims who had perished in the attacks. And, it was one of a kind administrative program. My first day on the job, really my first meeting on the job, third floor Main Justice building in the civil division was with several survivors from 9/11 from New York. And, a meeting that was supposed to last for probably 30 minutes lasted for more than three hours.

Canaparo: Wow.

Boudreaux: Because, there was just a lot that needed to be said and a lot that needed to be discussed.

Canaparo: So you eventually, during this time, won the department’s special commendation for outstanding service. Was that with respect to this work, your anti-terrorism work? Tell us about that.

Boudreaux: Right. So, a lot of times the department will create certain units that are focused on particular projects. And, I think this was one of those, a task force put together by many people up and down the line within the department. And, we had taken a position that we were going to compensate victims’ families, but at the same time, there were certain litigation that needed to be fought. And, the jurisprudence was not necessarily new, but it was definitely as applied new to us. And so, there was a lot of challenges on what are some of the things that we need to be defending, what are our positions going to be in court? And then, there was also a prosecutorial side to that as well. I think, those of us that were involved in that task force were boots on the ground, making decisions that really had never had to be made before. And so, it was a very interesting time.

Canaparo: So you went on to become counsel to the Associate Attorney General, who was the AAG at that time? And what did you do for him or her?

Boudreaux: The esteemed assistant attorney general for the civil division when I was there was Robert MacCallum. And Robert was an amazing leader who was very close to President Bush. They had gone to school together. And so, we had a very powerful civil division at the time. He went on to become the Associate Attorney General, and then ambassador to Australia. But, he was succeeded by another person who your listeners will be familiar with, Peter Keisler. And Peter also was just an amazing leader, an amazing lawyer. And so, we were well served when I was in that department with some of the best lawyers and leaders that we could have had. It was a very special time.

Canaparo: Another promotion came, senior council to the Deputy AG. What did you do in that position?

Boudreaux: So that position evolved very quickly. I was the last hire, I think, in government by Larry Thompson who was the Deputy Attorney General. He went on to become, I believe, general counsel of PepsiCo. And, his replacement was Jim Comey. And, I know your listeners will be familiar with Jim. He went on to become the FBI director. But I was not known by hardly anyone in that office. I had worked on a special project related to the 9/11 commission and the person who ran that gave me a recommendation to be in the deputy’s office. And so, it was a great opportunity for me. But when I got there, nobody really knew what to do with me. And, they handed me all these pardon applications. And, the interesting thing is the Deputy Attorney General actually adjudicates along with the pardon attorney, all the executive pardons. And so all the recommendations that go to the president are supposed to go through that office.

Obviously, there’s been controversies in the past where they’ve side stepped that, but that’s the way the process works. And, I inherited stacks and stacks of pardons. You can imagine the deputy’s office being embroiled in post 9/11 terrorism related activities on the criminal front, on the civil front. And then also, that was just after Enron. And so, the pardon applications were not the highest priority. And, I think I just started going through them almost with an accountant’s fervor. And, adjudicating those. And that caught the attention of our chief of staff at the time. And, he had worked at the FBI, he had been the chief of staff at the FBI. He very graciously gave me the FBI policy portfolio. And, that really changed my career, because that was a whole new world of excitement and high stakes, legal and somewhat policy related work.

Canaparo: What does it mean to have the FBI policy portfolio?

Boudreaux: Well, so you imagine the FBI being largely a criminal, our federal police, and that’s basically domestic criminal type issues. And then now, all of a sudden, they have a brand new national security, it wasn’t new, but a more enhanced national security priority. And, the give and take, and some of this you’ll see in my book that we’ll talk about, I guess, in the coming minutes, but you really have this tension that’s created there, that creates a lot of new policies. When the Department of Homeland Security came about and was established in 2003, and then really in earnest the months after that getting stood up, there was often battles of jurisdiction between the Bureau and DHS, where overlapping priorities led to jurisdictional disputes and those had to be adjudicated.

And so, there was a lot of that going on. And then just cases that involved policy related to terrorism and others that would come through the bureau, all of that fell within the deputy’s office, because they don’t often like to believe this, and I understand why, but the bureau doesn’t like to report to mother justice unless there’s a big problem or they need money. But, we had a very good working relationship between the bureau and the deputy’s office at the time. So, right in the middle of all that.

Canaparo: So you ended up joining Homeland Security as a deputy chief of staff. What prompted that change and what was that experience like?

Boudreaux: Michael Chertoff had left the Department of Justice as the Assistant Attorney General of the criminal division to become a judge on the third circuit. And, President Bush, when Ridge left, or was contemplating leaving, appointed Michael to be the next Homeland Security secretary. And, John Wood, who I know you’ve had on this program in the past became the chief of staff and he and Chertoff asked me to come over to be the deputy. And, it wasn’t a legal job per se. And, it was just 200,000 people, 22 component agencies shoved underneath this new agency, and it was something that was a priority for not only the administration but for our country. And it was something that I wanted to be a part of.

Canaparo: So after your government service, you joined Baker Bots and created their global security and corporate risk counseling group. What does that mean and what did you do?

Boudreaux: So many of the partners there probably still have that same question. So, what I did was, I had been a trial lawyer. In my DNA, I think I’m a trial lawyer. And, I had litigated a lot of cases at an early age. And, I wanted to do something different, because I had kids at this time, I did not want plaintiff’s lawyers and state court judges, particularly back in Texas if that’s where I was going to move, dictate my schedule and prevent me from coaching tee-ball. So that was my mindset at the time. And, I really went back home to Texas to try to leverage my Homeland and national security expertise now and it wasn’t a good fit. There wasn’t a whole lot of opportunities at the time for my background. And Baker Bots, which I’ve always thought was the gold standard in Texas for law firms had that opportunity for me in the D.C. office. And, they had Secretary Baker there. They had a lot of established litigators, but also connections to D.C.

And so, I went in and I tried to get my feet underneath me just like all new lawyers transitioning from government to the private sector do. And, ultimately created a practice group there that really just counseled companies on great many things, but compliance related issues, many Homeland security and national security issues in the compliance space. We ultimately ended up hiring Fran Townsend, who had been George Bush’s Homeland security advisor. And, once Fran Townsend came on board, I moved more into almost a chief of staff role once again, where we were working together as a team to really provide clients with a national security related compliance and crisis management service that was very beneficial for several years.

Canaparo: So what made you decide to move in-house at Huntington Ingalls?

Boudreaux: Well, one of the things that was great about Fran is that she took our business to a different level. The bad thing was is that she was in high demand and she ended up leaving the firm to go work for Macandrew & Forbes. And at the time, I had a great support from the Baker Bots family, and I always appreciate their giving me opportunities at their firm. But I really had a choice to make. Did I want to try to build really a new practice from the bottom up? Because, I couldn’t command her star power and the fees that she was able to bring, and try to re-energize a practice. Or, try something new. And I started talking to some friends, and former colleagues, and I told them I might want to try in-house. And, once my name got out there, it didn’t take long and the opportunity presented.

Canaparo: So what is your day-to-day like as the Chief legal officer?

Boudreaux: Well, it’s not unlike being deputy chief of staff for DHS. You put a list together of 10 things you hope to get accomplished, and you’re lucky to get one of those accomplished. It’s fast and furious and a lot of fun. We’ve built, I think, an amazing team here at this company. And our mission here is bigger than ourselves. We build things and provide services for heroes that defend our nation. And, as a part of that, we are defenders of freedom and promoters of peace. And we really believe that our mission is great. And so, we have an esprit corps here where it is much like government, the way I remember things in government. And so it’s a lot of fun, I can tell you that.

Canaparo: Excellent. So, besides your day job, you are also a novelist. But before I jump into the book, Scavenger Hunt, I wanted to go back to your time at DOJ, specifically you spent some time declassifying old documents from the Reagan administration. There’s a connection there to your book. Can you talk about that?

Boudreaux: Right. So, some of your listeners will know, maybe most will know that NARA is the National Archives. They require the government, the executive branch, to declassify documents over periods of time. And, we had just found ourselves in a period where, really, I think it might have been the penultimate tranche needed to be declassified for President Reagan.

And so, can you imagine going from Main Justice, walking over to a building on New York Avenue there in D.C. and going up into a stuffy room and there’s a bunch of boxes, and each box is categorized by subject matter during the Reagan administration. So, you had just say no. You had the line item veto debate that was going on, all of the different things that Reagan dealt with. And one of those was his speech at the Brandenburg Gate. And that’s the most exciting story of all, and just walking through that. But we had a team of lawyers there that were there to categorize and declassify. And, we had a lot of fun and learned a lot just by going through those documents. It was a very historic period, obviously, particularly with the Cold War.

Canaparo: Now, rumor has it also that you discovered two little known secrets about the DOJ’s headquarters while you were there. Can you let us in on those?

Boudreaux: Sure. So, I’m curious by nature, and I couldn’t understand why there were only seven floors on the elevator at Main Justice, but there appeared to be eight floors in the building. And, I kept asking a bunch of people about that. And few, if any, could tell me the answer. Finally, I found an institutionalist there who told me that it used to be the FBI ballistics lab. And, if I could find a way up there, I should take advantage. I eventually got a custodian who took me up there. We literally had a flashlight. And he had a great amount of knowledge about the floor, and walked around, and there’s hanging chains, and it’s an old supply room now. But, I walked around the entire floor, almost like a disjointed Olympic track, and dissolved these things from yester year. And then my mind just started going, and that was really the trigger that started me writing fiction. I wanted to talk about that.

But then, the book was picked up for publication, it was almost to print. And, I had gone to an event in D.C., this was back in April, I believe, of this year... Or last year rather. And, there were three former attorneys generals at this event, and one of them I was speaking to, and he told me, “Well, not only is there a hidden eighth floor, but there’s a hidden room above the attorney general suite. And rumor has it that it’s where RFK would take Marilyn Monroe.” And, of course my eyes lit up. I asked more questions. And then all of a sudden, another former attorney general showed up and he said, “Oh yeah. And let me tell you what else, RFK’s kids would come in with BB guns and fire shots in that room, and you can still see in the doors in the Attorney General’s conference room, which used to be RFK’s office, those indentations.”
And so, I got finished with the event, I ran home, and I said, “Stop the press.” I’ve got another chapter to write. So all of that, particularly the last piece that I described, you can find in chapter two of the book.

Canaparo: So, how did the secret rooms and declassifying documents, how do they fit into the book? Can you give us an overview?

Boudreaux: Yeah, they’re part of the story. One of the things that I wanted to do, I wanted to write an entertaining story, and that’s first and foremost as a novelist what you have to do. If I don’t grab the reader by page one and take them all the way to the end, I’ve failed. And so, my book is not a national security book, it’s not a legal book per se. Although, you’re going to hopefully learn some things along the way. But I also wanted to highlight the Main Justice building there on 9th and Penn, because a lot of people pay attention to the FBI building across the street, but Main Justice is an amazing building and most people have not been inside of it and they can’t go inside of it, because there’s so much security around it. It’s not open to the public.

And so, I really went about wanting to describe that. And ultimately, a lot of that gets cut at the end, because it takes away from the movement of the story, but there’s still a lot left in there. So, I really want to put my reader in the Main Justice building, in those rooms that I talked about, and hopefully I’ve achieved that.

Canaparo: What is the story of the book?

Boudreaux: So, the story is about the protagonist, Blake Hudson, who is a Supreme Court clerk in his late-20s, who joins the Attorney General’s office in a capacity as a counselor. And, he is thrust into a world where, not unlike what we saw, post 9/11, the next terrorist attack is imminent. And, there’s a group that’s created that is put together clandestinely to usurp all the bureaucracy, all the safeguards. And, Blake is brought in as the legal counselor to that with a group that involves NSA, DOD, well, Delta Force more specifically on the DOD side and CIA. And it’s a group that you could never put together in the real world, but they’re all a part of this operation Scavenger Hunt. And their role is to go prevent terrorist attacks from happening by overcoming all the bureaucratic safeguards.

And so, that puts Blake in a very precarious position, because he wants to do right by the law in his country. And so, what I’ve done is I’ve created these hopefully amazing characters, put them in this box that is almost impossible to crawl out of, and you have to see how they respond. And, along the way, I didn’t have any intent to share my politics, or to have any subtle undertones, but I guess if there is one thing, I did want the reader to understand that the real world of legal, of the law, and national security is not as binary as everybody wants you to believe. Everybody falls on a spectrum. We have people that lean more towards privacy, those that lean more towards national security. Most of us want both. But when you put somebody in a situation where there is imminent danger, like there is in this book, you really see behaviors in a way that is more realistic than the way the pundits spin it on television or on the Congress floor.

Canaparo: Interesting. So, it sounds to me like there’s a bit of a tension in the book between the bureaucratic procedures and what the characters feel is the imminent action that must be taken to prevent an attack.

Boudreaux: Exactly right. And that’s the thread throughout the book. And that’s, again, I hope real life situations, some more imminent than others. But, in this particular book, without spoiling the story, there’s a constant tension from Blake who wants to do the right thing. He doesn’t want to break the law, he doesn’t want to lose his legal license, he doesn’t want to be put in jail. But at the same time, there are things about to happen where if the boxes are all checked is not going to be thwarted. And so, I hope it’s an eyeopener for those that believe they’ve got it all figured out. We talked about what we did earlier. There’s a lot of things that we saw as related to terrorism jurisprudence being created. I know that’s of great interest to your listeners. I know many of them were foot soldiers in that. But, you have Article III judges that for the most part were making terrorism jurisprudence based on habeas petitions. And that’s not the real world. That’s not the way things work, so.

Canaparo: Fascinating. Well, our listeners can find a link to your book in the show notes. In the meantime, Chad, are there any more novels in the works?

Boudreaux: Yes, there are. So I actually have one that was picked up for publication last week. And, it’s not a sequel to Scavenger Hunt, but it’s a thriller. And, it’s one of those where you’re going to have to hold on tightly to make it through. And then, I did my research over the break for the next scavenger series. There’s been a lot of folks that were my advanced readers, and now readers now that the book is published who have asked me to consider writing more in that line, because they like the story, they like the characters. So thanks for asking.

Canaparo: Well Chad, I wanted to thank you so much for the time you’ve spent with us, and ask you one final question before you go. If you could have a conversation with any Supreme Court justice, living or dead, who would it be and what would you talk about?

Boudreaux: Yeah. So, I’m not going to answer this question directly, actually I am, but I’ve thought about it, because this is a question that I anticipated would come, but my favorite justice of all time is Clarence Thomas. And, I actually think he’s one of the greatest Americans living right now, just an amazing man. I know that there are others. I’m less interested in jurisprudential questions and more interested in what drove people to make decisions. So, I would love to talk to Justice Harlan about his soul dissent in Plessy. I would love to talk to Justice Story about what it was like to be 32 years old on the court.

But then, I really would’ve liked... And I actually had the opportunity to have a conversation at a holiday party with Justice Scalia before he died. And he’s also one of my heroes. And, I would love to ask him though some questions about his favorite restaurant AV that went out of business, because that’s actually something that I’m going to put in a future book. And, actually had the scene in mind, and I was thinking, “I wonder how Justice Scalia would’ve responded to this particular discussion that was being had.” I know that’s a dorky way to approach that question, but that’s the honest answer.

Canaparo: That’s all we can ask for. Chad, thank you so much for joining us. It’s been a pleasure.

Boudreaux: Thanks so much for having me. I appreciate it.

Smith: All right, GC, are you ready for trivia today?

Canaparo: You know it.

Smith: All right. Well, as we come to the end of the court’s terms, I know we all expect blockbuster decisions to come out in May and June of each year. So today, I thought we could talk about important yet underrated end of the term decisions. Are you ready?

Canaparo: Yes, indeed.

Smith: All right. First up, let’s start with something as American as apple pie and the 4th of July, baseball. But as a side note, how do you feel about apple pie, GC?

Canaparo: Big on apple pie, not big on baseball?

Smith: Well, I’m sure we’re both big on the 4th of July, so at least we can agree on that.

Canaparo: I hate agreeing with you about anything, Zack, but I have to confess.

Smith: Yeah, yeah, this is a good subject to agree on here. All right, well, let’s talk baseball for a second. Now, as you may know, Major League Baseball is the only professional sports league to enjoy an exemption from U.S. Antitrust laws. This exemption has been challenged in courts over the years. But so far, these challenges, by and large, have not been successful. However, one of these challenges, while not successful, did pave the way for free agency in baseball. What was this 1972 court case?

Canaparo: That I think was Flood versus Kuhn.

Smith: Yeah, that’s exactly right. And, the backstory to this case is fascinating. Curtis Flood played 15 years in the MLB. He was a three time all star. He won the Gold Glove seven consecutive seasons. And even won two World Series with the St. Louis Cardinals. Unfortunately, at the end of the 1969 season though, the Cardinals traded him to the Philadelphia Phillies. Now, at that time, players essentially had to play for the team that initially drafted them, and do what, and go where that team wanted. There was no free agency as it currently exists. Flood though, he didn’t want to go to the Philadelphia Phillies, so he brought a lawsuit challenging this entire arrangement. His case made it all the way up to the Supreme Court. And even though he lost at the court, the MLB and the MLB players later contractually agreed to do away with this system and eventually implemented free agency as we know it today.

Canaparo: Fascinating.

Smith: Now GC, I am curious, you just said you don’t like baseball, so how’d the answer to this trivia question?

Canaparo: Well, I don’t like baseball, but I do like law.

Smith: Well, that’s fair enough. I hope that’s the case, since you’re a lawyer. Well, very interesting. All right, let’s move on. Next up, let’s talk about the switch in time that saved nine. Now, we all know the case of West Coast Hotel versus Parish, which many commentators view as when that switch in time happened. But later, in 1937, in May of that year, the Supreme Court issued two opinions that upheld the constitutionality of the Social Security Act of 1935. GC, can you tell me one of those two cases?

Canaparo: Yeah. I know one is Helvering. I’m not actually sure about the second.

Smith: Yeah, that’s right. One case was Helvering versus Davis, and the other case was Steward Machine Company versus Davis. Now, both of these decisions were written by Justice Benjamin Cardozo, and both cases ultimately upheld the Social Security Act as a proper use of Congress’s spending power. All right, let’s move on to the movies. GC, what’s your favorite movie?

Canaparo: Wow, let me think.

Smith: This wasn’t supposed to be a curve ball for you.

Canaparo: I’m not sure. I have to think about that. Zack, I don’t think we have time to let me sit here and ponder my favorite movie. So, go ahead and hit me with your trivia question.

Smith: All right. Now, that one was not designed to stump you, believe it or not. But that wasn’t actually the trivia question. So, here’s our movie related trivia for the day. In 1948, the Supreme Court issued an opinion finding that many Hollywood studios at the time had violated the United States Antitrust laws. What was this case?

Canaparo: That’s interesting. I don’t know.

Smith: Well, that’s okay. That’s reasonable. Like I said, this is underrated, yet important Supreme Court cases. The case was United States versus Paramount. Now, at the time, major studios had exclusive contracts with actors and actresses, they own theaters, and they required independent theaters to buy blocks of their movies without having an opportunity to first screen them. In his opinion, in this case, Justice William O. Douglass struck down the block booking system and recommended the breakup of the theater monopolies, but he left it to the lower courts to implement this breakup. Ultimately, instead of fighting in the lower federal courts, many studios simply sold their theaters and instead chose to focus on a new entertainment medium, television. This decision was the culmination of a decades long fight with the U.S. Justice Department, and it played a major impact on shaping the entertainment landscape for some time.

Canaparo: This reminds me of the movie Singing in the Rain, where you get an inside look into how studios used to operate.

Smith: Are you going to belt out a few show tunes first here, GC?

Canaparo: Our audience would dessert in droves.

Smith: All right. Well, let’s end with a well-known case. And I think you’ll have no problem getting this one. This case was decided on May 17th, 1954. And in fact, they overturned a previous infamous case that the court had decided on May 18th in 1896. What was this case that ended the separate but equal status in public education?

Canaparo: You know perfectly well that I know the answer to this question. It is Brown v. Board. And of course, it overturned Plessy. Well, it didn’t overturn Plessy. Technically, it only held that Plessy was not applicable to public schools, but the writing was on the wall.

Smith: Absolutely. And, it’s very interesting, they were decided almost 58 years apart to the day. Well, well done in trivia today, GC.

Canaparo: Thank you, Zach. Thank you.

Smith: Well, that’s it for today. Thank you to everyone for listening to SCOTUS 101. Please be sure to subscribe on Spotify, Apple Podcast, or wherever else you listen. And as always, we’d appreciate if you left us five star rating.

Canaparo: You can follow us on Twitter @SCOTUS101 and email us at [email protected] with your questions, comments, or ideas for future shows.

SCOTUS 101 is brought to you by more than half a million members of The Heritage Foundation, executive produced by GianCarlo Canaparo and Zack Smith, sound designed by Lauren EvansMark Guiney, and John Popp